Citation Nr: 1528037
Decision Date: 06/30/15 Archive Date: 07/09/15
DOCKET NO. 14-04 425 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island
THE ISSUES
1. Entitlement to an initial rating in excess of 10 percent for tinnitus.
2. Entitlement to an initial compensable rating for posttraumatic headaches.
3. Entitlement to an initial rating in excess of 10 percent for a cervical spine strain.
4. Entitlement to an initial compensable rating for a traumatic brain injury (TBI).
5. Entitlement to an effective date earlier than February 16, 2012 for the award of service connection for tinnitus.
6. Entitlement to an effective date earlier than February 16, 2012 for the award of service connection for a cervical spine strain.
7. Entitlement to an effective date earlier than February 16, 2012 for the award of service connection for posttraumatic migraines.
8. Entitlement to an effective date earlier than February 16, 2012 for the award of service connection for a TBI.
9. Entitlement to service connection for hearing loss.
10. Entitlement to service connection for a lumbar spine disorder.
11. Entitlement to service connection for a right knee disorder.
REPRESENTATION
Veteran represented by: James Fausone, Attorney
ATTORNEY FOR THE BOARD
Kristy L. Zadora, Counsel
INTRODUCTION
The Veteran had active duty service from May 2011 to March 2012.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.
This appeal is now being processed utilizing the Veterans Benefits Management System (VBMS) paperless, electronic claims processing system. The Board notes that, in addition to the VBMS file, there is a paperless, electronic Virtual VA file associated with the Veteran's claims. A review of the documents in Virtual VA reveals VA treatment records dated through April 2013; such records were considered in the January 2014 supplemental statement of the case. The remaining documents in the Virtual VA file are either irrelevant to the claims on appeal or duplicative of those documents contained in the VBMS file.
The issue of entitlement to an initial compensable rating for a TBI is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. In a January 2015 submission, prior to the promulgation of a decision in the appeal, the Veteran, through his attorney, withdrew the issues of entitlement to an earlier effective date for the award of service connection for tinnitus, a cervical spine disorder, posttraumatic migraines and TBI.
2. In a January 2015 submission, prior to the promulgation of a decision in the appeal, the Veteran, through his attorney, withdrew the issues of entitlement to a higher initial rating for tinnitus and service connection for bilateral hearing loss.
3. For the entire appeal period, the Veteran's headaches are manifested by non-prostrating headaches that occurred five to six times per month without interference with activities of daily living or the use of medications.
4. For the entire appeal period, the Veteran's cervical spine strain was manifested by forward flexion that was limited to 35 degrees, at worst, without muscle spasms severe enough to result in abnormal spinal contour or abnormal gait, forward flexion of the cervical spine limited to greater than 15 degrees but not greater than 30 degrees, even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement, repetitive motion, or flare-ups; ankylosis; intervertebral disc syndrome with incapacitating episodes; or neurologic impairment.
5. At no time during, or prior to, the pendency of the claim does the Veteran have a current diagnosed disability manifested as a lumbar spine disorder, or persistent or recurrent symptoms of such a disability.
6. At no time during, or prior to, the pendency of the claim does the Veteran have a current diagnosed disability manifested as a right knee disorder, or persistent or recurrent symptoms of such a disability.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of the appeal regarding entitlement to an initial rating in excess of 10 percent for tinnitus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).
2. The criteria for an initial rating compensable rating for post-traumatic headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2014).
3. The criteria for a rating in excess of 10 percent for a cervical spine strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2014).
4. The criteria for withdrawal of the appeal regarding entitlement to an earlier effective date for the award of service connection for tinnitus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).
5. The criteria for withdrawal of the appeal regarding entitlement to an earlier effective date for the award of service connection for a cervical spine disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).
6. The criteria for withdrawal of the appeal regarding entitlement to an earlier effective date for the award of service connection for a posttraumatic migraines have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).
7. The criteria for withdrawal of the appeal regarding entitlement to an earlier effective date for the award of service connection for a TBI have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).
8. The criteria for withdrawal of the appeal regarding entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).
9. The criteria for service connection for a disability manifested as a lumbar spine disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014).
10. The criteria for service connection for a disability manifested as a right knee disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Withdrawn Claims
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204.
In a January 2015 submission, the Veteran's attorney withdrew the issues of entitlement to an earlier effective date for the award of service connection for tinnitus, a cervical spine disorder, posttraumatic migraines and TBI as well as the issues of entitlement to a higher initial rating for tinnitus and service connection for hearing loss. Hence, there remain no allegations of error of fact or law for appellate consideration with regard to such issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they must be dismissed.
II. VA's Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).
In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits.
With regards to the claims for service connection for a lumbar spine disorder and a right knee disorder, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a letter dated in March 2012, sent after to the rating decision issued in September 2012, advised the Veteran of the evidence and information necessary to substantiate his claims for service connection for a right knee condition and an upper back condition. This letter also advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra.
With respect to the propriety of the assigned ratings for the service-connected post-traumatic migraines and a cervical spine strain, the Veteran has appealed from the original grant of benefits. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran's claims for service connection were granted and initial rating was assigned in the September 2012 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned ratings, no additional 38 U.S.C.A. § 5103(a) notice is required as the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
Moreover, neither the Veteran nor his attorney has alleged or demonstrated any prejudice with regard to the content or timing of any notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
Relevant to the duty to assist, the Veteran's service treatment records, service personnel records and VA examination reports have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained.
Additionally, the Veteran was afforded VA examinations in order to adjudicate his claims for service connection for a lumbar spine disorder and a right knee disorder. In this regard, the Board notes that the July 2012 VA examiner offered an etiology opinion as to each claimed disorder and based their conclusions on interviews with the Veteran, a review of the record, and a full examination. Moreover, such opinions offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As such, the Board finds that the opinion proffered by the VA examiner is sufficient to assist VA in deciding the instant claims for service connection.
The Board notes the argument by the Veteran's attorney in the March 2014 substantive appeal suggesting that the July 2012 VA examination was inadequate because a current disability was not found. The attorney suggests that the compensation and pension examination is the "only day that matters for the [V]eteran's chance of getting service-connection" and that the examination results were "simply flawless" despite the Veteran's filing of claims for service connection and "ongoing deficits for the knee and low back." This argument is a misstatement of current law. As discussed below, the July 2012 VA examiner found that the Veteran did not now have, nor has he ever had, a diagnosed back condition or a knee condition and noted the Veteran's subjective complaints of pain on examination. The clinical evidence also did not show a current lumbar spine or right knee disorder. Moreover, the Veteran's attorney has not cited to any such clinical evidence establishing a current disability. See, e.g., McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). This argument is therefore without legal merit.
Additionally, the Veteran was afforded VA examinations in July 2012 to determine the nature and severity of his post-traumatic migraine headaches and a cervical spine strain. Neither the Veteran nor his attorney has alleged that these VA examinations are inadequate for rating purposes. The Board finds that the examination is adequate in order to evaluate the Veteran's service-connected post-traumatic migraine and a cervical spine strain as they include interviews with the Veteran, a review of the record, and a full examination, addressing the relevant rating criteria. Moreover, neither the Veteran nor his attorney have alleged that his disabilities has worsened in severity since the July 2012 VA examination. Rather, they argue that the evidence reveals that the Veteran's disabilities have been more severe than the currently assigned ratings for the duration of the appeal period. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claims for a higher rating and no further examination is necessary.
The Board notes the argument by the Veteran's attorney in January 2015 submission suggesting that the July 2012 VA examination was inadequate as the examiner found that the Veteran was unable to complete full forward flexion range of motion, had also found that this inability had "nothing to do with the limitations of pain" and did not indicate why range of motion was limited. This is a mischaracterization of the examiner's opinion. While the examiner did find that there was cervical spine forward flexion was limited, she also found that there was no objective evidence of pain on range of motion testing and that functional loss was due to less movement than normal. In addition, localized tenderness or pain to palpation for joints/soft tissues of the cervical spine was not found. The Veteran himself did not report pain at the examination and described intermittent sharp neck pain. Moreover, the reason for limitation of motion in not necessary for rating purposes; rather inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. See C.F.R. § 4.45. This argument is therefore without legal merit.
In addition, the Board notes the arguments by the Veteran's attorney in the March 2014 substantive appeal that a new examination for the cervical spine strain was warranted to evaluate the "point of pain intrusion" and the additional deficit witnessed during period of flare-up. As stated above, no objective evidence of pain was found during range of motion at the July 2012 VA examination. There is also no indication that the Veteran subjectively complained of pain on range of motion as he generally reported intermittent sharp neck pain. Further, while the Veteran reported flare-ups that occur after "sleeping wrong," he did not report any additional functional limitations as a result of such flare-ups. This argument is therefore also without legal merit.
Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims.
III. Increased Rating
A. Relevant Statutes and Regulations
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7.
Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.
In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C.A. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.
The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40.
With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.
38 C.F.R. § 4.45.
The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).
Traumatic arthritis is rated under the diagnostic code pertinent to degenerative arthritis. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. In the absence of limitation of motion, Diagnostic Code 5003 provides for a 10 percent rating with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating under Diagnostic Code 5003 requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations.
A. Post-traumatic Migraines
The Veteran contends that the frequency of headaches, namely five to six times per month, warrant a compensable rating.
The diagnostic criteria indicate that migraines with characteristic prostrating attacks averaging one in two months over last several months warrant a 10 percent rating. Migraines with characteristic prostrating attacks occurring on average once a month over last several months warrant a 30 percent rating while migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100.
The rating criteria do not define "prostrating;" nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that according to WEBSTER'S
NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical
exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness."
A July 2012 VA examination report reflects the Veteran's complaints of headaches five to six times per month for the last few months. These headaches were reported to be located mainly in the bilateral temples, were described as pounding and were reported to be "5/10" in severity. These headaches were reported to be associated with some lightheadedness, intolerance to light but not noise, numbness or other visual phenomena, nausea and vomiting. He reported that these headaches lasted 30 to 45 minutes without taking anything, that he was not aware of any triggers, that he suspected staring at bright light could trigger it but that he avoids the same. He also reported that he sometimes had to stop what he was doing for one to two minutes (once or twice per headache) before returning to the activity despite the headache. Headache pain was described as pulsating or throbbing head pain on both sides of his head. The examiner found that the Veteran did not have characteristic prostrating attacks of migraine headache pain or very frequent prostrating and prolonged attacks of migraine headache pain.
An August 2012 VA treatment note reflects the Veteran's complaints of headaches five to six times per month.
An August 2012 VA polytrauma consultation note indicates that the Veteran's reported headaches were consistent with a common migraine, and that the headaches were brief, infrequent and tolerable. The examiner noted that there was no indication for "prophy or abortive medications."
The record does not support an initial compensable rating for post-traumatic migraines. Although the Veteran has reported experiencing headaches five to six times per month, he also has indicated that these headaches did not interfere with his activities of daily living, that he returned to activities after a brief break despite having a headache and that he did not undergo current treatment. It is not sufficient to demonstrate the existence of a particular frequency of headaches; the headaches must be of a specific prostrating character. As explained above, the record does not indicate that the Veteran's headaches were prostrating and accordingly, a compensable rating is not warranted.
B. Cervical Spine
The Veteran contends that his symptoms, namely limitation of motion and pain, warrant a compensable rating.
The Veteran's cervical strain is rated under Diagnostic Code 5237. 38 C.F.R. § 4.71a. In this regard, the criteria for rating all spine disabilities is set forth in a General Rating Formula for Diseases and Injuries of the Spine.
The General Rating Formula for Diseases and Injuries of the Spine holds that for Diagnostic Code 5235 to 5243, a 10 percent rating is warranted where there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or, there is muscle spasms, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted where there is forward flexion of the cervical spine to 15 degrees of less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, 5237.
The criteria also include the following provisions:
Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.
Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.
Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.
Note (4): Round each range of motion measurement to the nearest five degrees.
Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.
Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.
Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table).
The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months.
An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation.
A July 2012 VA examination report reflects the Veteran's complaints of intermittent sharp neck pain and a "stiff neck" at times. Flare-ups were reported and that "sleeping wrong makes it worst." The use of an assistive device was denied. Physical examination did not reveal localized tenderness or pain to palpation for the joints/soft tissues of the cervical spine nor were there guarding or muscle spams of the cervical spine severe enough to result in abnormal gait or abnormal spinal contour. Forward flexion was found to be to 40 degrees, extension was found to be to 40 degrees, bilateral lateral flexion was found to be to 35 degrees and bilateral rotation was found to be to 70 degrees, all without objective evidence of painful motion. Repetitive motion testing found flexion to be to 35 degrees, extension to be to 30 degrees, bilateral lateral flexion to be to 30 degrees and bilateral rotation to be to 70 degrees. Radicular pain or any other signs of symptoms due to radiculopathy were not found and he was found to not have IVDS of the cervical spine. Imaging tests did not reveal arthritis or a vertebral facture.
After considering the foregoing evidence, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent based on the General Formula. Specifically, at no point during the appeal period has the Veteran's lumbar spine been characterized by ankylosis or forward flexion limited to greater than 15 degrees but not greater than 30 degrees, even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). While the Veteran's attorney argues that a higher rating is warranted as range of motion testing found forward flexion to be limited to 35 degrees on repetitive motion testing, the diagnostic criteria require forward flexion to be limited to greater than 15 degrees but not greater than 30 degrees to warrant a higher rating, which the Veteran clearly did not exhibit at the July 2012 VA examination or at any other point pertinent to this appeal.
In this regard, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In the instant case, the Veteran has complained of intermittent neck pain. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath, supra. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).
However, despite the Veteran's complaints, pain did not result in forward flexion that was limited to greater than 15 degrees but not greater than 30 degrees, at any time during the period on appeal. Although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell, supra. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Further, there was no localized tenderness or pain to palpation for the joints/soft tissues of the cervical spine nor were there guarding or muscle spams of the cervical spine. Burton, supra; 38 C.F.R. § 4.59. Thus, a higher rating is not warranted for the Veteran's cervical spine strain even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination.
The Board has also considered whether the Veteran's service-connected cervical spine strain has resulted in intervertebral disc syndrome with incapacitating episodes as described under Diagnostic Code 5243. However, no physician has diagnosed him with IVDS and the July 2012 VA examiner specifically found that he did not suffer from IVDS. Moreover, the VA examination and clinical records fail to show any evidence of incapacitating episodes due to his cervical spine disorder that meet the requirements set forth in Code 5243, i.e., requiring bed rest prescribed by a physician. Therefore, a higher rating is also not assignable under the Formula for Rating IVDS Based on Incapacitating Episodes. Further, the Board notes that spinal arthritis was not found on imaging studies, as noted by the July 2012 VA examiner.
In addition to considering the orthopedic manifestations of a cervical spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that he has radiculopathy, bladder impairment or bowel impairment as a result of his service-connected cervical spine strain. Therefore, the Board finds that, at no time during the appeal period, has the Veteran's service-connected cervical spine strain resulted in neurological impairment.
C. Other Considerations
The Board has considered whether staged ratings under Hart and Fenderson, supra, are appropriate for the Veteran's service-connected post-traumatic migraines and cervical spine strain; however, the Board finds that his symptomatology has been stable for each disability throughout the appeal. Therefore, assigning staged ratings for each such disability is not warranted.
In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected disabilities at issue and notes that his lay testimony is competent to describe certain symptoms associated with these disabilities. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and have been contemplated by the disability ratings for which the Veteran has been found to be entitled to by the Board. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disabilities at issue. As such, while the Board accepts the Veteran's statements with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected conditions at issue.
Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1).
In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under
§ 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.
Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id.
The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected post-traumatic migraines and cervical spine strain with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which each such disability is rated. The Veteran's various subjective complaints-including but not limited to headaches, intermittent neck pain and neck pain range of motion limitation-are contemplated by the rating criteria under which each associated disability is rated. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture for each disability. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).
The Board notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific, rated disability. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions.
The Court held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered "part and parcel" of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability). However, the Veteran does not allege, and the record does not show, that his service-connected cervical spine strain and/or post-traumatic migraines has rendered him unemployable at any time during the course of the appeal. The Board notes that the Veteran reported that he was pursing his Bachelor's degree and that he planned to pursue a career in law enforcement in a September 2012 VA treatment note. Therefore, further consideration of a TDIU is not necessary.
IV. Service Connection
The Veteran contends that he suffers form a lumbar spine disorder and a right knee disorder as a result of an improved explosion device (IED) explosion during service.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].
In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To the extent that the Veteran does not have a disease recognized as chronic under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology are inapplicable.
Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year, respectively, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
Service treatment records indicate that the Veteran was wounded from an IED blast in November 2011. In a December 2011 Post-Deployment Health Assessment, the Veteran reported back pain. An April 2010 separation physical examination indicated that there had been no interval changes in the Veteran's medical history since the last physical examination. The remaining service treatment records are negative for complaints, treatments or diagnoses related to any lumbar spine and/or right knee disorder.
Post-service treatment records were negative for complaints, treatments or diagnoses related to any lumbar spine and/or right knee disorder. A July 2012 VA examiner, following a physical examination, found that the Veteran did not have, and has never been diagnosed with, a back and/or knee disorder.
Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.
Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001).
In the instant case, the probative evidence of record fails to demonstrate a current diagnosis of a lumbar spine and/or a right knee disorder. While the Board has also considered the Court's holding in Romanowsky, supra, there is also no probative evidence of a recent diagnosis of disability prior to filing of the Veteran's claims. Subsequent to service, the competent medical evidence of record has also failed to show that the Veteran has ever been diagnosed with a lumbar spine and/or a right knee disorder. While the Veteran has generally reported experiencing back and knee pain, such symptoms have not been attributed to a specific disability.
The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. Thus, where, as here, the probative evidence indicates that the Veteran does not have a current diagnosis of a lumbar spine and/or right knee disorder for the entire appeal period, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra.
In the instant case, the probative evidence of record fails to demonstrate a current diagnosis of lumbar spine and/or right knee disorder. While the Board has also considered the Court's holding in Romanowsky, supra, there is also no probative evidence of a recent diagnosis of disability prior to the Veteran's claims. Moreover, although the Veteran's attorney has disputed the findings of the July 2012 VA examiner, he has pointed to no clinical evidence suggesting the presence of a current lumbar spine and/or right knee disorder.
In this regard, the Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge and the Veteran's attorney is competent to report his observations regarding the Veteran's symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).
However, the matter of a medical diagnosis for a disability not capable of lay observation, such as that of issue here, is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Specifically, the diagnosis of a lumbar spine and/or right knee disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of testing. In the instant case, there is no suggestion that neither the Veteran nor his attorney have had any medical training or education. Therefore, as the Veteran does not have the appropriate medical training and expertise to competently self-diagnose a lumbar spine and/or right knee disorder, the lay assertions in this regard have no probative value. Jandreau, supra at 1377 n.4 ("[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).
The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §1110. Thus, where, as here, the probative evidence indicates that the Veteran does not have a current diagnosis of a lumbar spine and/or right knee disorder for the entire appeal period, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra.
For the foregoing reasons, the Board finds that no higher or separate ratings are warranted for the claims of entitlement to a higher rating for post-traumatic migraines and a cervical spine strain. In addition, the Board finds that service connection is not warranted for a lumbar spine disorder or a right knee disorder. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against higher or separate ratings, or the award of service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
The appeal as to a higher initial rating for tinnitus is dismissed.
An initial compensable rating for post-traumatic migraines is denied.
An initial rating in excess of 10 percent for a cervical spine strain is denied.
The appeal as to an effective date earlier than February 16, 2012 for the award of service connection for tinnitus is dismissed.
The appeal as to an effective date earlier than February 16, 2012 for the award of service connection for a cervical spine strain is dismissed.
The appeal as to an effective date earlier than February 16, 2012 for the award of service connection for posttraumatic migraines is dismissed.
The appeal to an effective date earlier than February 16, 2012 for the award of service connection for a TBI is dismissed.
The appeal as to the claim for service connection for hearing loss is dismissed.
Service connection for a lumbar spine disorder is denied.
Service connection for a right knee disorder is denied.
REMAND
Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the claim remaining on appeal so that the Veteran is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The United States Court of Appeals for Veterans Claims has held that, where the record does not adequately reveal the current state of claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995).
The record reflects that the Veteran was most recently afforded a VA examination to determine the severity of his TBI in July 2012. The Board finds that an additional examination is necessary as the Veteran alleged worsening symptoms since his last VA examination. In a January 2015 submission, the Veteran's attorney asserted that the Veteran was experiencing balance issues, difficulty sleeping, concentration deficits, difficulty orienting himself and difficulty forming sentences. A July 2012 VA examination report found that there were no complaints of impairment of concentration, that he was always oriented to person, time, place and situation and that there were no subjective symptoms of balance. In light of these allegations of worsening symptoms, the Board finds that a remand is required in order to afford the Veteran's a contemporaneous VA examination so as to determine his current level of impairment with regard to his TBI. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).
Finally, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the claims file.
Accordingly, the case is REMANDED for the following action:
1. Obtain all VA treatment records from April 2013 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).
2. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected TBI. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted.
To ensure that the all medical findings are expressed in terms conforming to the amended schedular criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect as of October 23, 2008, the Board requests that the examination be completed in accordance with the Review Evaluation of Residuals of TBI (R-TBI) Disability Benefits Questionnaire (DBQ).
Based on the examination results, the physician should provide an assessment of the current nature and severity of the service-connected TBI consistent with the revised schedular criteria for evaluating the residuals of TBI under 38 C.F.R. § 4.124a, Diagnostic Code 8045. The physician is asked to specifically address the degree to which the service-connected disability is manifested by facets of cognitive impairment including memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness.
In making his or her assessment, the physician should identify all comorbid physical, neurological, or mental disorder(s), and state whether each is shown to be caused by the Veteran's TBI. If not, then, with respect to each comorbid disorder identified, the physician should attempt to distinguish any symptoms and impairment attributable to such disability from identified residuals of a head injury. If the manifestations cannot clearly be distinguished, the physician should clearly so state.
The physician should specifically address the Veteran's contentions regarding sleeping difficulties, concentration deficits, difficulty orienting himself and difficulties forming sentences.
All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.
3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remain denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs